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The Lawyer’s Library in the Early American Republic Alison PDF

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The Lawyer’s Library in the Early American Republic Alison L. LaCroix* In November 1826, Chief Justice John Marshall wrote a letter to his friend and fellow justice Joseph Story in which he commended Story’s recent address before Harvard’s Phi Beta Kappa society. “I have read it with real pleasure and am particularly gratified with your eulogy on the ladies,” Marshall wrote. “It is a matter of great satisfaction to me to find another Judge, who, though not as old as myself, thinks justly of the fair sex, and commits his sentiments to print.” Here Marshall’s praise for the speech ended, though, and the letter took a remonstrating tone. “I was a little mortified, however, to find that you had not admitted the name of Miss Austen into your list of favorites. I had just finished reading her novels when I received your discourse, and was so much pleased with them that I looked in it for her name, and was rather disappointed at not finding it.” The chief justice then proceeded to defend his favorite: “Her flights are not lofty, she does not soar on eagle’s wings, but she is pleasing, interesting, equable, and yet amusing.” Therefore, he warned his colleague, “I count on your making some apology for this omission.”1 In Story’s defense, he had listed nine other female authors in the Phi Beta Kappa address, among them Madame D’Arblay (better known to Anglo-American readers as Fanny Burney), Ann Radcliffe, and Maria Edgeworth. But he had not included Jane Austen. Twenty-five years later, Story’s son William Wetmore Story, himself a lawyer- turned-artist, provided an exculpation of his father. “It is due to my father to say, that he fully recognized the admirable genius of Miss Austen. Scarcely a year passed that he did not read more than one of them, and with an interest which never flagged,” the younger Story wrote. He continued: * Professor of Law, University of Chicago Law School. I thank Melissa Gworek for excellent research assistance. 1 Marshall to Story, Nov. 26, 1826, in Charles F. Hobson, ed., The Papers of John Marshall, vol 10 (Chapel Hill: University of North Carolina Press, 2000), 315. I well remember, in the year 1842, while I was engaged in finishing a bust of him in marble, for which he gave me several sittings, that ‘Emma’ was read aloud at his request to beguile the time. With what relish he listened, his face lighting up with pleasure, and interrupting my sister continually to comment on the naturalness and vivacity of the dialogue, or the delicate discrimination of character,--to express his admiration of the author’s unrivalled power of exciting and sustaining interest in groups of common and prosaic persons, merely through her truth and felicity of delineation,-- and to draw parallels between the characters in the novel, and persons of our acquaintance. . . . Our little family group was then enlarged by the addition of Emma, Mr. Knightley, Mr. Woodhouse and Miss Bates, who almost became real persons to us, as we read. But the ludicrous impatience with which my father always greeted the entry of Miss Bates, plainly showed that she was a fiction, for had she had an actual existence, he would have been sure to receive her with patience and kindness.2 Taken together, Story’s Phi Beta Kappa address, Marshall’s gentle rebuke, and William Wetmore Story’s recollections offer a vivid, if unexpected, picture: two of the greatest legal minds of the early American republic arguing over which of them demonstrates the proper reverence for the writings of a female English novelist who, at the time of the speech in question, had been dead for nine years. Three aspects of this brief look into Marshall’s and Story’s reading habits are likely surprising to twenty-first-century observers. First, the justices of the Supreme Court of the United States were reading novels. Second, they were reading British novels. Finally, they were reading British novels written by women, and speaking and writing publicly about the importance of those novels. Why? What did novel-reading in particular, and literature more broadly, mean to Marshall, Story, and their fellow lawyers and statesmen in the early years of American nationhood? This essay explores the role of fiction in the early American republic, in particular the central place that reading literature, and reading fiction in particular, occupied in the thought of lawyers and judges. Many late-eighteenth and early-nineteenth-century political and legal luminaries such as John Adams, Thomas Jefferson, Marshall, Story, 2 William Wetmore Story, ed., The Life and Letters of Joseph Story, volume 1 (Boston: Charles C. Little and James Brown, 1851), 506-07. 2 James Kent, and William Wirt were avid readers – and in some cases producers – of fiction. Moreover, these lawyers and judges were not at all reticent in discussing their love of reading and the depth of their familiarity with contemporary works of fiction; indeed, they peppered their correspondence with allusions to popular novels and their characters, gave public addresses on the importance of literary culture, and in some cases penned their own literary works for publication, including Marshall’s five-volume Life of George Washington (1799); Wirt’s Letters of the British Spy (1803), The Old Bachelor (1814), and Life and Character of Patrick Henry (1816); and Story’s lengthy poem The Power of Solitude (1801). James Kent, the eminent New York chancellor and treatise author, also found time to pen criticism of the works of a diverse group of authors, including Shakespeare, Sir Walter Scott, Ann Radcliffe, Thomas Carlyle, Cicero, and Juvenal.3 Literature was far from a guilty pleasure for these lawyers. On the contrary, they regarded the cultivation and flowering of American letters as an important complement to what they viewed as the young republic’s signal contributions to law, politics, and the institutions of government. For many statesmen of the period, the consumption and production of literature by Americans was proof of membership in a broader Atlantic world of letters, a civilized environment of learning, culture, and Enlightenment sensibilities. In addition to a marker of participation in a community of lettered nations, the building of an American “republic of letters,” in literary critic Michael Warner’s phrase, was also a sign of a particularly American blend of literacy, public debate, and dedication to a special set of political commitments based on civic and personal virtue and participation in the public sphere.4 Reading fiction thus offered a medium of personal interaction and engagement with the lives and emotions of other members of the republic. Reading novels offered a way for individuals to experience a specifically republican and therefore socially desirable form of sympathy – an emotion that had a distinctly political cast in this period.5 By the early 3 Robert Ferguson, Law and Letters in American Culture (Cambridge: Harvard University Press, 1984), 68. 4 Michael Warner, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Cambridge: Harvard University Press, 1990), ix. 5 Andrew Burstein, “The Political Character of Sympathy,” Journal of the Early Republic 21 (2001), 631- 32. 3 nineteenth century, a distinctly romantic sensibility complemented this republican interest in the relationship among the individual as reader, the individual as republican citizen, and the character of the republic itself. For Story, Wirt, and many of their fellow early national statesmen, their predecessors’ emphasis on the Republic had been replaced by a focus on the Union, the nation, and on nurturing and celebrating what Story termed “a national feeling.”6 The use of the word “feeling” here is significant, for it illustrates early-nineteenth-century commentators’ fascination with activating sentiments in the population that would give the American people greater connection with the almost- metaphysical political and emotional entity, the nation. While many legal and literary scholars have focused on the significance of literature in the Revolutionary and founding periods of the late eighteenth century, the early decades of the nineteenth century have received less attention. As this essay will demonstrate, however, the period between roughly 1800 and 1845 was important because it witnessed the struggles of the second post-independence generation of lawyers and statesmen to give concrete, institutional meaning to the sometimes-conflicting ideologies of the founding, and because many of these deeply political actors viewed literature as a necessary component of the project of creating a nation. In a legal and constitutional sense, the Declaration of Independence had announced the United States’ arrival on the international stage, and the Constitution had enunciated a normative system to meld the several states into a single general government.7 But many of the cohort of lawyers and statesmen who came of age after 1800 believed that an equally important task lay before their generation: to bolster their predecessors’ assertions of membership in the community of nations with evidence not only that the United States was a legally functioning state, but that America was capable of producing a national culture, even a 6 Joseph Story, “Discourse Pronounced at Cambridge, Before the Phi Beta Kappa Society, on the Anniversary Celebration, August 31, 1826,” in ibid., The Miscellaneous Writings, Literary, Critical, Juridical, and Political, of Joseph Story, LL.D., Now First Collected (Boston: James Munroe and Co., 1835), 17 (hereafter “Phi Beta Kappa Address”). 7 See David Armitage, “The Declaration of Independence and International Law,” William and Mary Quarterly 59, 3d ser. (2002), 61 (distinguishing between statehood and nationhood in the late eighteenth century and arguing that the Revolutionary period achieved American “statehood in the international order,” but that American nationhood was a product of the Civil War). 4 civilization. In their view, that culture ought to be based on accomplishments in the fields of literature, science, and the arts, as well in government. Even among this generation of lawyers who also aspired to a life of letters, Story stands out as a remarkable and towering presence. Throughout his career, Story wrote and spoke extensively about the importance of literature to American nationhood, explicitly invoking the nation’s political achievements and presumed destiny to urge his audience to devote themselves to producing an equally important literary culture. Prior to the 1826 Phi Beta Kappa address, Story (class poet of the Harvard College class of 1798 and author of the patriotic ode sung at that year’s commencement exercises) wrote numerous poems, including two published editions of The Power of Solitude, as well as essays on chancery jurisdiction and maritime and commercial law for the influential North American Review. Later in his career, after adding a professorship at Harvard Law School to his duties as associate justice of the Supreme Court, Story continued to deliver public addresses on subjects as varied as “The History and Influence of the Puritans” (1828), “Developments of Science and Mechanic Art” (1829), and “Consecration of the Cemetery at Mount Auburn” (1831), while also producing his three-volume Commentaries on the Constitution (1833) and prominent treatises on bailments, conflict of laws, agency and partnership, equity jurisprudence, bills of exchange, and promissory notes. In 1835, he published a collection entitled Miscellaneous Writings, Literary, Critical, Juridical, and Political, which included the Phi Beta Kappa address, several additional “literary discourses,” and a poem titled “Lines, Written on the Death of a Daughter, in May, 1831,” which gave voice to Story’s anguish following the loss of his ten-year-old daughter, Louisa. In 1842, three years before his death, Story again explicitly took up the question of literature and American national identity in “Literary Tendencies of the Times,” an address before the Harvard alumni society. The tone of the 1826 Phi Beta Kappa address and the 1842 alumni speech differ somewhat, with the latter taking a decidedly more elegiac tone suggesting Story’s 5 increased pessimism about the future of the Union, both literary and political. Taken together, however, the two speeches suggest the central place that literature occupied in Story’s, and his contemporaries, vision of the American nation. Story clearly regarded the reading and writing of literature as vital activities for the developing United States and its citizens. In the Phi Beta Kappa speech, he celebrated literature as a site of activity recently opened to women, suggesting that literary production and consumption raised the potential of “human virtue and human happiness” for people in general and for women in particular.8 In the late eighteenth century, many members of the founding generation believed that literature – especially fiction – ought to be part of a gentleman’s education because it provided individual moral instruction on membership in a republic. By the early decades of the nineteenth century, in contrast, not only were statesmen such as Story and Wirt producing literary works of their own, they were arguing that involvement in literature was a symbol of national virtue, progress, and membership in the community of civilized nations. To be sure, these second-generation early nationals were motivated in part by anxiety about the place of the United States in the world, and about the prospect for future national achievement to match that which they obviously felt they had missed by being born too late to have participated in the Revolution. Moreover, the Revolutionary generation had spent little time on developing the letters, arts, and sciences, leaving an obvious gap for their progeny to tackle. A fascination with literature spurred Story, Wirt, and their contemporaries not in spite of their professional role as lawyers and politicians, but because of that role. For them, building a union that could both command the respect of the community of nations and touch the emotions of its citizens required novels, poems, and essays as well as digests, statutes, and common-law decisions. I. The Generations Contrasted. Like the second generation of Puritan settlers in New England, who feared that God had abandoned their project, and the historians who later argued that this declension 8 “Phi Beta Kappa Address,” 10. 6 was a precondition for the emergence of America identity, many nineteenth-century lawyers and statesmen displayed profound ambivalence toward their Revolutionary inheritance.9 On one hand, they worried that they had missed an epochal historical moment by only a decade or so. Story, who was born in 1779, spent his childhood in Marblehead, Massachusetts, hearing stories of his father Elisha’s participation in the Boston Tea Party and solo disarming of a British sentry on Boston Common during a raid by the Sons of Liberty to abstract His Majesty’s cannon.10 Story later recalled that his father had impressed upon him “an ambition for excellence” and the importance of working for “distinction as a man.”11 To complete the picture of a generation anxious not to disappoint, Story’s mother Mehitable is said to have told the boy, “Now, Joe, I’ve sat up and tended you many a night when you were a child, and don’t you dare not to be a great man.”12 At the same time, however, this “collective pressure to succeed,” as historian R. Kent Newmyer describes it, appears clearly to have instilled in many members of the post-Revolutionary generation a conscious ambition to carry on and expand the work of their forebears.13 In 1832, William Wirt’s biographer P.H. Cruse speculated that the renowned attorney general must have come to view his birthplace of Bladensburg, Maryland, with a “complacent satisfaction.” Although the town was now a “decayed, ruinous hamlet” (and an infamous dueling ground for District of Columbia quarrels), it had presented a different aspect when Wirt was born in 1772. “At that day the free empire in which he was to be an ornament and a conspicuous actor, had not even an existence, and little did those foresee, who caressed him as an apt, imitative boy, that on hills almost within sight of his humble patrimonial roof, proud domes were to arise in which he was to discharge the functions of the highest legal office of the republic, and sit 9 See, e.g., Perry Miller, Errand Into the Wilderness (Cambridge: Harvard University Press, 1956) (“Some historians suggest that the second and third generations suffered a failure of nerve; they weren’t the men their fathers had been, and they knew it. . . . [A]ll these children could do was tell each other that they were on probation and that their chances of making good did not seem very promising.”), 3. 10 R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 10. 11 Story, Life and Letters, 1:22 and 26-27. 12 Newmyer, Supreme Court Justice Joseph Story, 19. 13 Ibid., 34. 7 in council on its most momentous concerns.”14 For young Americans coming of age in the early nineteenth century, the long shadow of the Revolution and the founding era provided both a daunting yardstick and a spur to action. As Story, Wirt, and their contemporaries appreciated when they looked back at their storied forbears, the members of the founding generation were not simply producers of theory; they were avid consumers of words and ideas. And those ideas came not only from political tracts and works of philosophy, but also from fiction. Along with their Locke, Montesquieu, and Rousseau, late-eighteenth-century Americans read novels – many novels.15 Consider a letter that Thomas Jefferson wrote to his prospective brother- in-law, Robert Skipwith, in August 1771. Skipwith had asked Jefferson to provide a list of books that would be the basis of his library. “I would have them suited to the capacity of a common reader who understands but little of the classicks and who has not leisure for any intricate or tedious study,” Skipwith wrote to Jefferson. “Let them be improving as well as amusing.”16 In response to Skipwith’s request, Jefferson drafted a list comprising 148 titles, which he broke down into nine groups: “Fine Arts,” “Criticism on the Fine Arts,” “Politicks, Trade,” “Religion,” “Law,” “History, Antient,” “History, Modern,” “Natural Philosophy, Natural History &c.,” and “Miscellaneous.” Of these categories, the most numerous by far was “Fine Arts,” which included 75 titles, among them plays by dramatists such as Molière and Dryden as well as the poetry of Homer, Virgil, and Pope. Having exceeded Skipwith’s proposed budget of “about five and twenty pounds sterling, or if you think proper . . . thirty pounds” by some £70, the biblio-generous Jefferson excused the inclusiveness of his list by saying he “could by no means satisfy myself with 14 [P.H. Cruse,] “Biographical Sketch of William Wirt,” in William Wirt, The Letters of the British Spy . . . To Which is Prefaced, a Biographical Sketch of the Author, 10th ed. (New York: Harper & Brothers, 1832), 14-15. 15 The following paragraphs draw on my essay “The Founders’ Fiction: Reading Eighteenth-Century Novels in Company With the American Revolutionaries,” Common-place (www.common-place.org), vol. 3, no. 9 (April 2009). 16 Skipwith to Jefferson, July 17, 1771, in Julian P. Boyd, ed., The Papers of Thomas Jefferson, vol. 1 (Princeton: Princeton University Press, 1950), 74-75. 8 any partial choice I could make” and that he had therefore “framed such a general collection as I think you would wish and might in time find convenient to procure.”17 The prominence of fiction on the list is striking to modern eyes. More than a third of the books listed under “Fine Arts” are works of fiction. All are by European authors. They include classics that are still read today, such as Cervantes’s Don Quixote, Henry Fielding’s Tom Jones and Chaucer’s stories, as well as more arcane works more likely to be found on the syllabus of a course on eighteenth-century English literature than on the shelf at Barnes & Noble, such as Tobias Smollett’s Peregrine Pickle and Frances Sheridan’s Memoirs of Miss Sidney Bidulph. Along with the works of philosophy and law that one would expect to see on a founder’s reading list (Xenophon’s Memoirs of Socrates, Blackstone’s Commentaries on the Laws of England), Jefferson’s list made the case that a gentleman’s library ought to include literary fiction. “[T]he entertainments of fiction are useful as well as pleasant,” Jefferson wrote to Skipwith. “[E]verything is useful which contributes to fix in the principles and practices of virtue.” Perhaps the principal lesson to draw from Jefferson’s list is that many of the founders were humanists who valued literature, and not only scientists of politics who delighted in building models of government. Indeed, Jefferson is an ideal exemplar of this late-eighteenth-century blend of the humanistic interest in the particular with the scientific zeal for the general. The same Jefferson who collected mastodon bones in an effort to disprove European assertions of America’s biological inferiority also accompanied his list of recommended reading with a defense of fiction as a tool for developing what he termed “the moral feelings.” Fiction, Jefferson claimed, could serve as a tool for cultivating a virtuous citizenry. To Skipwith, Jefferson wrote, “I appeal to every reader of feeling and sentiment whether the fictitious murther of Duncan by Macbeth in Shakespeare does not excite in him as great a horror of villainy, as the real one of Henry IV by Ravaillac as related by Davila?”18 As literary scholar Douglas L. Wilson has noted, Jefferson’s insistence in his letter to Skipwith on fiction’s power to 17 Jefferson to Skipwith, Aug. 3, 1771, in Thomas Jefferson: Writings (New York: Library of America, 1984), 740-45. 18 Id. at 741. 9 elicit “the sympathetic emotion of virtue” borrowed heavily from the writings of the Scottish jurist and philosopher Lord Kames, especially Kames’s Elements of Criticism.19 For Jefferson, as for others of his generation, reading literature provided two important benefits: first, a means of participating in European norms of gentility, and second, a course of individual moral instruction on membership in a republic.20 As Jefferson wrote to Skipwith, “When any signal act of charity or of gratitude, for instance, is presented either to our sight or imagination, we are deeply impressed with it’s beauty and feel a strong desire in ourselves of doing charitable and grateful acts also.” Therefore, he continued, “[E]very emotion of this kind is an exercise of our virtuous dispositions; and dispositions of the mind, like limbs of the body, acquire strength by exercise. But exercise produces habit; and in the instance of which we speak, the exercise being of the moral feelings, produces a habit of thinking and acting virtuously.”21 Writing to Samuel Adams in 1790, then-Vice President John Adams put the case for republican moral education more bluntly: “‘The love of liberty,’ you say, ‘is interwoven in the soul of man.’ So it is . . . in that of a wolf; and I doubt whether it be much more rational, generous, or social in one than the other, until in man it is enlightened by experience, reflection, education, and civil and political institutions.”22 Members of the founding generation such as John Adams, who peppered his correspondence with references to Tristram Shandy, regarded literature as an instrument for taming the passions and training the selfish individual will into a productive republican virtue. In the early nineteenth century, the relationship between political and literary culture appears to have changed. Scholarly characterizations of this early national shift 19 Douglas L. Wilson, “Thomas Jefferson’s Library and the Skipwith List,” Harvard Library Bulletin 3 (1992-93), 66-68. 20 On the period between 1700 and 1790 as an “era of gentility,” see Richard L. Bushman, The Refinement of America: Persons, Houses, Cities (New York: Vintage, 1993), xii-xiii. On American literature in transatlantic context, see Leonard Tennenhouse, The Importance of Feeling English: American Literature and the British Diaspora, 1750-1850 (Princeton: Princeton University Press, 2007). 21 Jefferson to Skipwith, 741. 22 John Adams to Samuel Adams, Oct. 18, 1790, in Charles Francis Adams, ed., The Works of John Adams (Charles C. Little and James Brown, 1851), 6:417-18. 10

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The Lawyer’s Library in the Early American Republic Alison L. LaCroix* Twenty-five years later, Story’s son William Wetmore Story, himself a lawyer-
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